Announcing the Release of Securing Citizenship

Following the excerpts of the reports published on the blog over the course of November, the Centre for Public Interest Law, JGLS, has published Securing Citizenship, which can be found here. The report identifies the critical legal issues surrounding precarious citizens and stateless persons in India. It recommends strengthening the existing legal framework in three interrelated chapters: Status, Detention, and Socio-Economic Rights. The report’s recommendations draw on international law, Indian law, and best practices across jurisdictions, situating their implementation in India’s complex and unique landscape.

This report is the outcome of a research partnership between the Centre for Public Interest Law (CPIL) at Jindal Global Law School, Sonipat (JGLS) and the Faculty of Law, Université Catholique de Lille. The authors convey their gratitude to the advisors – Amal de Chickera, Ioannis Panoussis, Niraja Gopal Jayal and Ravi Hemadri – for their important insights on the initial drafts of the report and guidance in navigating the law concerning statelessness. The authors are equally thankful to the commentators – Andrea Marilyn Pragashini Immanuel, Angshuman Choudhury, Ashna Ashesh, Carly A. Krakow, Darshana Mitra, Jessica Field, Sagnik Das, Suraj Girijashanker and Thibault Weigelt – for reviewing the report and sharing their detailed analyses.

The authors owe their thanks to Mohsin Alam Bhat, as Research Director, for lending his support and legal expertise to conduct this study. As research supervisor, Aashish Yadav coordinated and supervised the drafting of the report, guided the team at every stage, and structured their findings. The authors are very grateful for his passionate engagement and contribution to this report.

The team is grateful to Prof. E. Tendayi Achiume, Dr. Bronwen Manby, Prof. Michelle Foster, Amal de Chickera and Prof. Joshua Castellino for their respective endorsements of this report. The report carries a generous foreword by Prof. B.S. Chimni.

The team holds enormous appreciation for AbhilashRadhaKrishnan for designing the report and making it an enjoyable read. They are extremely grateful to Raki Nikahetiya for graciously allowing the use of his photograph as the cover image of this report.

The student authors of this report are:

Anushri Uttarwar, Arunima Nair, Khush Aalam Singh, Veda Singh, Vrinda Aggarwal, and Yamini Mookherjee from Jindal Global Law School.

Amandine Desmont, Claire Jacquot, Flora Turrado, Hélène Jolly, and Theo Antunes from Université Catholique de Lille.

We welcome responses to the report from our readers as submissions to the blog. The report authors encourage readers to write to them with thoughts and comments.

To foster engagement with the report, we invite you to attend the Securing Citizenship Webinar, organised in collaboration with Centre for Public Interest Law, JGLS. Our panelists include Amal de Chickera (Co-Founder & Co-Director, Institute on Statelessness & Inclusion), Sujata Ramachandran (Research Associate, Balsille School of International Affairs, Waterloo) and Oliullah Laskar (Advocate, Gauhati HC). Our moderator will be Mohsin Alam Bhat (Executive Director, CPIL). Please register at https://bit.ly/3lPXPOl to receive the link and password for the webinar.

Excerpt: Rights of Child Detainees

The following post is an excerpt from the upcoming report Securing Citizenship’ on India’s legal obligations towards precarious citizens and stateless persons authored by the Centre for Public Interest Law, JGLS and Faculty of Law, Université Catholique de Lille. The Report reviews and comments on the key contemporary legal issues pertaining to citizenship and statelessness in India. Divided into three chapters – Citizenship StatusDetention and Socio-Economic Rights – the Report presents recommendations to strengthen the existing legal framework. This excerpt is the last in a three-part series of excerpts from the report. The previous excerpts on legal recognition of the status of statelessness and the framework of socio-economic rights of non-nationals can be found here and here. The entire Report will be published in the final week of November, and the schedule of events can be found here.

IV. RIGHTS OF CHILD DETAINEES

All the rights and prohibitions against detention established and elaborated above apply in the case of children. However, given their special and vulnerable condition, children enjoy additional standards of protection. This section begins with an argument against detaining children on the premise that such detention violates international law pertaining to child rights. Moreover, the state can deploy less intrusive measures in dealing with children. However, given that children may be under detention at present, this section details the rights of such child detainees to be ensured by the state.

The situation of children detained in Assam is worrisome. There is a lack of clarity about the number of children that are currently in detention; however, their presence in detention centres is a confirmed fact. A recent affirmation is found in the application filed before the Supreme Court seeking the release of declared foreigners in the detention centres in light of the COVID-19 outbreak. The application mentions the increased vulnerability of the detainees, which includes elderly people and children living in crowded conditions. There were 31 children in detention centres as per available information. The conditions of these detention centres pose debilitating effects on mental health, without adequate treatment and opportunities for education and recreation. The impact of this situation on children is exponentially greater and liable to pose severe harm to their health.

  1. Detention of children should not take place in principle

As per international law and Indian statutes, detention of children should not take place. The Central Government’s submission before the Supreme Court in the ongoing case of Assam Public Works is a welcome development, stating that children of parents declared as citizens in the NRC shall not be sent to detention centres and shall not be separated from their parents. The absolute prohibition of detention also applies to ‘foundlings’ as a particularly vulnerable category of children. It is argued that children should qualify for protection under the Juvenile Justice Act, 2015 (‘JJ Act’) as ‘Children in Need of Care and Protection’ (‘CNCP’). This section addresses the categories of children who are vulnerable and need protection. This section also seeks to establish safeguards that necessitate compliance when dealing with children in detention.

A.1 Principle of ‘Best Interests of the Child’

Detention of children for the purpose of deportation is a flagrant and unjustified breach of the fundamental principle of best interests of the child protected by Article 3 of the CRC. India is a party to the convention and has incorporated the principle in Chapter II of the JJ Act. As stated by the CRC Committee, the best interests principle is satisfied by the strong prohibition of detention of children since such deprivations of liberty have an extraordinarily adverse impact on the child’s well-being and development. This prohibition particularly must be enforced if the child is detained on the sole basis of their or her parent’s migration status.

While the lack of data is deplorable with regard to the age of the children currently detained in Assam, it is extremely likely that all categories of children and more specifically the most vulnerable ones, such as unaccompanied and young children, are in detention. In light of these elements, India is obligated to cease its current practice of detaining children in detention centres. All the children currently in detention must be immediately released as per international law and Indian law on the issue.

A.2 Detained children as ‘Children in Need of Care and Protection’ under the JJ Act

The Juvenile Justice (Care And Protection Of Children) Act, 2015   1 (4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law, including — (i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in conflict with law; (ii) procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection.   2 (14) “child in need of care and protection” means a child — (i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or (vii) who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed;  

The Object of the Act includes the making of comprehensive provisions for all children in consonance with the standards prescribed in the CRC. Therefore, the JJ Act can be used to operationalise India’s international obligations to address the vulnerabilities of both stateless children and children at risk of statelessness.

The scope of the term CNCP encompasses the broad categories of children who are at the risk of detention and its consequent negative impact. Section 2(14)(i) of the JJ Act refers to a child who is found without any home or settled place of abode and without any ostensible means of subsistence. This can cover children whose parents are in detention, who are stateless or are suspected of being foreign nationals. Such children would qualify for protection under the JJ Act. Further, Section 2(14)(vii) extends the scope of CNCP to foundlings i.e. children ‘whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed’. [A foundling is a child of unknown parentage found abandoned within the territory of a state.] This argument is further corroborated by the view taken by Justice Lokur on the scope of the definition of CNCP, stating that the term must be given a broad interpretation. This means stateless children as well as children at the risk of statelessness qualify for protection under the JJ Act.

A.3 Conclusion and recommendations

The CRC and the JJ Act extend a large set of protections to these vulnerable children. The state must conform with best interests of children as mentioned in the JJ Act, keeping in line with international law. Detention of children for removal shall never take place, irrespective of the citizenship status of their parents.

  • Release all children in detention in Assam as well as stateless children in detention in India as per international law and Indian law. NGOs shall be allowed unimpeded access to detention centres in Assam to ensure that no children remain in detention.
  • Children at the risk of statelessness and currently in detention should be presented before the district Child Welfare Committee for drawing up protection plans on a case-by-case basis, bearing in mind the best interests of the child.
  • Develop alternatives to detention for stateless children and their families. Non-custodial, community-based alternatives shall be prioritised.
  • Rights of children in detention

As argued above, despite the prohibition of arbitrary detention of children, there is evidence indicating that children remain in detention in Assam due to their precarious citizenship. This section responds to rights of children in detention until they are released as per international law and Indian law on the issue.

RightIndian contextEuropean contextRecommendations
Right to family unity (if parents are also being detained)Children below 6 years of age are kept alongside their mothers in the detention centre. There is no clarity on circumstances of children over 6 years of age.Families in detention must be provided with separate accommodation to ensure their privacy.   Best practice: In Belgium, children accompanied by their parents are, in principle, not detained but transferred to return houses or to an open reception centre which are adequate, child-friendly alternatives to detention.Conduct an assessment on the compliance of the detention measure with the best interest of the child as per the family unity principle. Develop more alternatives to detention for stateless children to avoid the disruption of family unity, such as reception centres.
Right to education at an off-site facilityThe Supreme Court hasheld that India is obligated to provide free and compulsory education to all children between 6 and 14 years. The court has clarified the vast scope of Article 21A of the Constitution, referring to India’s participation in the drafting of the UDHR as well as the ratification of the CRC.   Issue: lack of data regarding any educational opportunity for children in detention in Assam.EU member states must provide minors, whose removal has been postponed, with access to a basic education system, depending on the length of their stay.   Best practice: Czech Republic allows migrant children to attend schools at the local elementary school outside the detention facilities. The ECtHR also requires the classes to be free as a bar against discrimination on the immigration and nationality status.Children must have access to an education system where they are taught by qualified teachers through programmes integrated in India’s education system, regardless of the length of their stay in detention facilities.They must benefit from free classes to avoid any discrimination.Education should be provided outside of detention facilities in line with the best interests of the child.
Right to recreation and playArticle 31, CRC + Best Interests of the Child. Issue: lack of data concerning children’s access to leisure activities in detention in Assam.This right is protected in Europe but suffers from poor and uneven implementation in the region. Best practice: In Lithuania, children may participate in recreational activities in one of the country’s detention centres.Ensure recreational activities in which children facing statelessness can meet local children and young people through NGOs or social workers.Sensitise the public with information on the significance of this right for children.Guarantee access without discrimination on the child’s legal status.
Right to medical treatmentThere is an obligation to provide access to health care services to all children. The state must ensure satisfactory health conditions and health-related education. Issue: lack of information on the health conditions of children.Necessary healthcare must be provided, at least with regards to emergency care and to essential treatment of illness and serious mental disorders. First challenge: the consent of unaccompanied children to medical treatment (rigorous assessment of the age and maturity of the child by Finland, the Netherlands, Slovenia and Spain). Second challenge: lack of paediatricians and mental health specialists Best practice: In Poland, children benefit from regular visits from paediatricians in the centre. In Portugal, children may benefit from psychological services to help them deal with anxiety, stress, depression, etc. and can also be referred to the hospital or psychiatric services if necessary.Ensure that the consultations are conducted in a child-friendly manner and are respectful of the child’s right to confidentiality.Organise regular visits by medical professionals from outside the facilities.Provide children information about available mental health services. Conduct medical screenings of newly arrived stateless children identifying potential issues, both physical and mental, that need care.Ensure a rigorous assessment of the child’s free and deliberate consent to medical treatment.

“I’m too hungry to think of the Pandemic”: An Interview with Iftikar Hussain Siddique from Assam

Iftikar Hussain Siddique is a paralegal in Assam doing his part in ameliorating the conditions of those whose names are excluded from the NRC. This interview seeks to unearth the on-ground realities of Assam as it withstands floods, a pandemic and an identity crisis begotten by the NRC process. Mr. Siddique recounts his encounters and stories highlighting the condition of Assam at the juncture of this confluence of issues. 

This interview has been edited for clarity and length. 

Aarushi Mittal: Thank you for agreeing to speak to us. Can you tell us a little bit about your work, and how you came to be working as a paralegal?

Iftikar Hussain Siddique: My work includes helping those who are excluded from the NRC List. My aim is to help those from our community who fall within the weaker section of the society. In my initial years, I tried to ensure a healthy and hygienic environment for children. It was around this time that I started helping D-voters in getting their case through along with advocates. Essentially, I assist people in filling up the forms that need to be submitted. Since a sizable proportion of the population is uneducated, they need some sort of help in filling these forms and understanding what they entail. 

Since these are uneducated people, they don’t know where their thumb impression needs to be put or if one needs to be put at all. They tend to ask around for help from shop owners. They don’t know anything which is written in the form. This is where my role begins. Further, I also help them in checking if their name is on the list. My friends and I assist them in formulating their claims to citizenship. We were guided by lawyer Aman Wadud in this regard. This is how we tried to help people on the grassroot level. We prepare them for hearings by explaining what all needed to be said and what documents had to be submitted. 

Sometimes the biometric machines do not function, so we collected data on which places need a functioning biometric machine to ensure that procedure was not stopped. It is important to submit certain documents, while others are often ruled to be redundant. For instance, many people had submitted their Panchayat documents which were not accepted by the courts as valid proof of citizenship. So, we tried to help them collate a different set of documents which could be submitted. 

AM: It has been one year since the final list of the NRC was released. Rejection slips stating the reasons for exclusion were supposed to have been issued to excluded persons, allowing them to file appeals. However, no rejection slip has been issued so far. What has been the impact of this delay on people?

IHS: A very funny yet very astounding impact of this has been with respect to marriages. People now ask whether the name of the prospective bride or groom is on the NRC and whether there has been any adjudication to that effect. There is no other standard. People who have returned from detention camps, their children are in most detriment. This is a major trouble. Halima Khatoon’s daughter is being rejected simply because her mother was declared a foreigner. This is reasoned by claiming there are chances of a legal appeal, and that they would have to pay for these cases by selling lands. 

On our part, we tried to help 2000+ families by providing them ration. It is absolutely imperative at this point in time when floods have wiped out fields and the pandemic has taken away work that such provisions be undertaken. People don’t have ration cards or any other means to procure a day’s meal. Many people in the detention camps do not have ration cards. While the government provided Rs.1000 to families, that is barely adequate. Jabeda Khatoon, who had submitted almost 15 documents and was still declared foreigner, had her entire house destroyed as a result of a cyclone. Aman sir tried to help out by contributing some money to fix her house. She was extremely sick and yet she couldn’t go to a hospital because of her status as a foreigner. We tried to get in touch with a few organizations to help her. With a family with no source of income, the cyclone, pandemic, and NRC impacted her greatly. 

In this one river island, there was almost 5 feet of water. The people would survive on barely any meals.  There had been waterlogging for almost 2 months. We were able to help on the first day of Eid. This was a situation which existed across the spectrum. There was once a huge population among 52 households built of concrete, the floods barely spared a few. These people definitely get impacted. The delay creates trouble in that sense. 

AM: Assam has faced the twin blows of COVID-19 and floods.You personally have been involved in a lot of relief work in lower Assam. In your observations, how has this situation impacted persons left out of the NRC? Has there been any government aid? 

IHS: The first lockdown was of 21 days. Those who left their houses were beaten up. Further, there was no sale of food grains. Social distancing is a luxury, one which no one can afford. People can’t leave homes, and even if they do, they don’t have a market for their grains since people aren’t leaving homes. Before COVID, hunger was enough of a concern. The pandemic was not a concern for poor people, hunger was. People would say that they were too hungry to think of COVID. 

Another issue is the weakened health conditions of those in the detention camps. This is exacerbated with the onset of the pandemic.  One by the name of Rajkumar was a daily wager and was travelling to work, he was not aware of the imposition of the lockdown. The police ended up beating him up badly for flouting the lockdown rules. Daily wagers are severely impacted. 

The government is only concerned with testing for people who are COVID-19 positive. The political parties come door to door to spread their agenda. They advertise schemes. The Health Minister himself does not wear a mask. The BJP representatives are flouting the norms of social distancing left and right. In furtherance of the elections which were slated to happen, too many meetings are held and there is no social distancing or use of masks. 

Guwahati has some restrictions, but these are being flouted by political parties. People don’t trust the hospitals. They just buy medicines and stay home. I believe that Modi and Trump both would simply use the pandemic as an excuse for inefficient functioning. So, they are causing COVID to worsen to bolster their excuses. People have tried to reduce their expenditure on subsidiary items like clothing or going out. The poor Muslim people have been targeted specifically and deemed to be the cause of the spread. They are making a disease communal. While the doctors are cooperative, the media has portrayed a communal image. 

The masks are not provided, the government should be distributing masks. The hospitals are not good, doctors are not treating patients properly. Those who are positive are caught and after two days they are released. No containment zone is being made. The people who are positive are not being treated adequately. Hygiene again is a luxury – when a person cannot afford food, how are they to buy sanitizers. The government spends so much money on ancillary things like prizes to state toppers – this is not the time to make such promises. You need these funds to fight COVID. The NGOs must be employed in this regard too. People don’t have soaps to take a bath, hand washing is not possible. The pandemic is for the rich to worry about. 

AM: We know that persons declared foreigners by the Foreigners Tribunals are being detained in detention camps. What are the conditions within these camps? There is a stand-alone detention camp coming up in Goalpara–what is the status of that camp? How have local communities near the construction site reacted to the presence of the detention centre?

IHS: Jails had quite a few cases since they have people coming from outside. If one person is positive then all would be positive: jails were sealed and people testing positive were removed. The Supreme Court ordered that those who had been in the camps for over 2 years be released. As a result of the same, less than 50% people were released. 

However, now those who leave the camps, they will have to go to the police stations. This has caused a spike in the number of COVID-19 cases in Police stations. Those with COVID-19 still have to travel once a week. One person, who had to walk to a police station for almost 2 hours, had COVID. I asked him to inform the officers as him going to the station would not be safe for the police station in any way. The police asked him to come next week. There is no proper system in place. These people should not be asked to traverse to these stations at a time like this for a few months. Public transport is not functioning, police stations are far off and women cannot cycle to these stations. People need to walk for hours on end and be exposed to the risk of contracting a deadly disease. There is a need for intervention to that effect. 

As for Foreigners Tribunals, they are not currently functioning. The Buksa District Tribunal, however, has sent multiple notices. People do not have money, and these notices are released. Now they need to pay lawyers for this. People cannot fight these cases. They say that they’d rather have poison than exist like this. I cannot sleep listening to these stories. I do not know how I would tackle these situations. One person goes through multiple trials and tribulations with reference to their identity as an Indian. I’ve stopped asking people because it disheartens me so much. 

The detention camp in Goalpara had stopped construction initially and now it has begun again recently. Those who are excluded are really suffering. People keep asking me questions on how to ensure citizenship. They wake me up at 5 AM asking me how to go about this. I tell them that once the process begins again, I will help. The process of scanning documents has recently begun, they have started curating speaking orders. However, official documents still remain inaccessible.  

It’s great for government teachers, the lockdown, they can work at home. The poor people however are in too much pain. This one person had no money whatsoever and we gave him some money. We tried to give some food to people — however so many people came that we had to call the police to calm the crowd. People require food. If you give food to one person, multiple people come for it. Parents ask for food for their children. This one time, I gave one packet of biscuit to this one child and he ran off. It made me cry. His mother kept weeping outside my house. She was a widow. She couldn’t reconcile with the reality that had befallen her. 

AM: Have the FTs been functioning during the pandemic? If yes, do you think adequate measures are being taken to make sure that people are able to receive a fair trial?. Are cases dismissed hurriedly given that there was a pandemic or is the pandemic being used as an excuse to deny due process?

IHS: The advocates have lost a lot of money as a result of this lockdown. They used to earn a lot of money in these proceedings. What will happen is that they will now increase their charges for the case. This would further deprive people of the justice that they deserve. People will receive lesser money for their assets due to the lockdown. There might be people who are witness to some cases. If they are casualties to the pandemic, someone loses their chance at citizenship. People might not be able to come. People are not able to procure documents. It takes about 15 days to get documents, this is effectively delayed. People need to apply for certified copies. If these offices do not have officers however, they cannot procure such certified documents. The District Collector’s offices cannot be approached by outside people. How are they to fight cases?

The 6th citizen concept has become the talk of the town recently as a result of Clause 6 of the Assam Accord. People will be deprived of political rights, rights to buy land, or get jobs. In 1950, many places were really backward, they were not consulted in the first consensus. They remain unnamed. This would be highly unfair. It is a really bad situation. The 200 members appointed for the FT aren’t doing anything, they are just being paid taxpayers’ money. The staff that has been appointed to operate computers and all are not being paid salaries since March. They need to cover costs on their own. The system is not at all effective or people friendly. The reverification is also being discussed. People are being harassed. It’s a politically motivated system of harassment. Nobody knows how the government plans to tackle this. It eludes everyone, it’s only politics.

Aarushi Mittal is a 3rd year law student at West Bengal National University of Juridical Sciences. She is a research volunteer with Parichay.

Interview with Swati Bidhan Baruah

Swati Bidhan Baruah is a vocal advocate for the plight of the transgender community in Assam. Not only was Ms. Baruah Gauhati University’s first transgender law student, but she also went on to become Assam’s first transgender judge. Ms. Baruah has fought and won several cases for the recognition of trans rights. Her organization, the All Assam Transgender Association, has been consistently working towards the realisation of the rights of the transgender community.

This interview has been edited for length and clarity.

Natasha Maheshwari: Ms. Baruah, you filed a plea before the Supreme Court against the exclusion of 2000 persons belonging to the transgender community from the National Register of Citizens (‘NRC’). What motivated you to file the case? What was the Supreme Court’s response? Were they sympathetic to the problems of the community?

Swati Bidhan Baruah: Many transgender persons are abandoned or disowned by their families. When they leave their homes in search of a community, they stay with us. Neither do they have any connection with their parental homes nor any documentation that can help them establish linkage with their parents or guardians.  In such a situation, will they be termed as foreigners? Are they not citizens of India? 

Additionally, the first step of the NRC process i.e. the NRC form, allowed persons to choose from three gender categories — male, female, and other. By including the ‘other’ category, trans persons were given the right to identify themselves. However, when the first draft of the NRC was published, many trans persons found themselves to be excluded from the list. That is when I spoke to Mr Prateek Hajela, the then NRC Coordinator. Mr Hajela assured me that the government will implement the necessary evolving principles required to ensure the inclusion of members of the transgender community. This would be done through a claims and objections procedure. 

But the claims and objections procedure forced trans persons to identify as either ‘male’ and ‘female’, i.e. the ‘other’ category was not included. Now, let’s assume that I chose to identify my gender as ‘other’ while filling the NRC form and later, did not find myself included in the first draft of the NRC. While filing a claim or an objection, the ‘other’ category was not mentioned, thereby forcing me to identify as either male or female. So on one hand, the NRC process purports to allow trans persons to participate in it while simultaneously disallowing us from identifying ourselves. This process is violative of the 2014 NALSA judgment which gave trans persons the right to self identify in addition to leading to discrepancies in data thereby leading to problems in proving citizenship. 

When I spoke to Prateek Hajela about this he did not provide us with a satisfactory response. This is why we found it imperative to file an intervention application before the Supreme Court. 

[The NRC] is also violative of the rights of orphaned children. How are they supposed to identify themselves as citizens? In order to be included in the NRC, you have to show the authorities your family tree and establish linkage parents. That becomes impossible.

In the court, the ex-CJI told us that we have missed the bus, the Court could not restart the procedure [to ensure our inclusion].  My submission is that if we have missed the bus, aren’t trains and flights available? Why do they not want to accommodate us? However, the Supreme Court did not dismiss our petition. They kept it standing and issued notice to the State Government. The matter is still pending. 

NM: What is the experience of the transgender community in Assam during the NRC? Were the NRC Seva Kendras (‘NSKs’) receptive to the trans community’s complaints? Did they help members of the community to look for their legacy data?  What has been the community’s experience in producing legacy and linkage documents necessary for inclusion in the NRC been?

SBB: The officers at the NRC Seva Kendras were extremely insensitive. Most members of the trans community do not have any documents to prove their citizenship; the government has not taken any initiative to recognise them. As a result they find themselves excluded from the NRC process. 

The officers did not allow us to enter the Seva Kendra. Often, quarrels took between trans persons and officials. But this has not been highlighted by the media. I believe that the media plays a very important role in sensitising members of the society and officers of the government. It is very important that the NALSA judgment is implemented so that our rights are realised and recognised. 

The NRC process requires you to enclose documents to show your father’s presence in the country before the year 1971. Thereafter, you have to produce your birth or school certificates to establish a relationship with your father. This entire process is violative [of trans rights] and doesn’t have any evolving principles. 

Most trans people do not have documentation that will enable them to prove citizenship. Let me give you an example: let us assume, before transitioning, you were a boy, your name was Rahul. Now, you have transitioned to a girl and your name is Reshma. How do you prove that Rahul is Reshma? The state government is responsible for ensuring that trans persons possess documentation to show that Rahul and Reshma are one and the same person. A few trans persons left home at an older age and still recognise their parents or know of their whereabouts. When they visited their parental homes, their parents refused to give them the required documents. So, in such cases, how do you expect them to produce documents that will enable them to prove citizenship and be enlisted in the NRC?

In 2018, the Ministry of Home Affairs published a report publishing its plans for a nationwide NRC. If the Government of India is planning to extend the NRC process to the entire country it will be a gross violation of the rights of the trans community and orphaned children. 

NM: What were the efforts made by civil society organisations to ensure the inclusion of transgender persons in the NRC? Was the government receptive to these efforts?

SBB: No efforts were made, they did not do anything to help us. Seeing the discrepancies in the NRC process, my organisation, the All Assam Transgender Association, filed an intervention application before the Supreme Court pleading for a trans friendly NRC. 

NM: How can the government make sure that transgender persons are included within the NRC, i.e., what would a trans-inclusive NRC look like?

SBB: I believe that the government should keep the trans community in mind before initiating any process (and I am not referring to the NRC alone). They should recognise us as a part of society, we should not be alienated and marginalised. Keeping in mind the Supreme Court’s judgment in the NALSA case, the government should evolve a process that is trans friendly. Necessary principles need to be framed specifically for the trans community. If a trans person does not have documents then self-identification should suffice and be accepted as a valid document. If NRC Seva Kendras can exist for men and women, why can’t transgender persons have one?

NM: In 2018, the United Nations raised concerns of the purposeful exclusion of minority groups from the NRC by the local authorities. Do you agree with this concern?

SBB: Yes, I do. The NRC should not violate anyone’s interest. And I am not referring to trans persons only. For example, take yourself, you are born and educated in India. You are religious to the motherland. If someone comes and initiates a process that might declare you as a foreigner, how will that make you feel? It is very problematic!

Instead of implementing an NRC, I believe that the government should define the border.  This will prevent trespassing. There should also be an Inner Line Permit in the state along with a law to protect the interest of domiciles. So, there are other ways to protect the rights of the indigenous communities. The NRC is an extremely regressive alternative.

NM: Foreigners’ Tribunals (‘FTs’) are vested with extraordinary power due to the highly restricted criterion for judicial review. They are also allowed to evolve their own rules of procedure. As Assam’s first transgender judge, what is your opinion on the competence of the Foreigners’ Tribunals, which are quasi-judicial bodies, and its members to decide a person’s citizenship?

SBB: They may be vested with extraordinary powers but their orders are often challenged before the High Court and Supreme Court. They are also quashed, if need be. So there is nothing to worry about. A discrepancy, if any, seems to have arisen in ensuring the appointment of FT member judges. After the NRC process was completed. the government was supposed to set up more Tribunals to ensure justice to the persons excluded from the NRC. However, despite the selection of 200 member judges, their appointment has not been disbursed. And yes, there is executive interference and bureaucratic resistance in the functioning of the FTs.Of course, it is a matter of concern. But, in respect of matters concerning transgender persons, if we find any discrepancies in the FT orders, we will challenge them in addition to questioning the credibility of the FT member. 

NM: What, in your opinion, has been the role of the Gauhati High Court in upholding due process in cases before Foreigners’ Tribunals?

SBB: Several Muslims were excluded from the NRC solely because of their name. Suppose a man’s surname is Ali, but his father’s surname was Hussain and his mother’s surname was Begum. Now this man has given birth to 4 children. So one child uses Ali as his surname, another writes Hussain, and the third writes Begum. Their surnames do not match with each other and as a result they were declared as foreigners. The Gauhati High Court intervened in cases like these and rectified the judgment of the FTs. Of course, the court is the ultimate remedy. We must have some faith in the judiciary. There are good judges with a strong conscience who have expanded the area of jurisprudence and rectified the mistakes of the FTs. 

Natasha Maheshwari is a fifth-year law student at Maharashtra National Law University Mumbai.

Interview with Aman Wadud

Aman Wadud is a practicing lawyer in Assam, where he provides ground-level legal services and support to those who are at risk of being stripped of their citizenship status, owing to the National Register of Citizens (‘NRC’) process. He appears before the Guwahati High Court and the Foreigners Tribunals in Assam, and has also argued before the Supreme Court of India. His voice has been crucial in highlighting the ethnic and religious prejudices in the adjudication of citizenship in Assam. Apart from his litigation practice, Aman was heavily involved in the NRC process which involved travelling across Assam to spread awareness about the Court-monitored NRC. He has recently received the Fulbright-Nehru Master’s Fellowship for 2021-22, and hopes to continue to build on his work through this opportunity. In this interview, we discuss his work, citizenship adjudication in Assam, and the recent petition regarding the release of detainees in light of COVID-19.

This interview has been edited for clarity and length.

Devashri Mishra: I hope to discuss themes and questions which derive from your previous interviews, public appearances, talks delivered in colleges, your engagement with Parichay, and your work. But before any of that, congratulations on receiving the Fulbright-Nehru Master’s Fellowship for 2021-22! Can you tell us about what inspired you to apply for the Fellowship and how you believe it aligns with your work? 

Aman Wadud: Thank you so much for inviting me to do this. 

Earlier this year I was in the United States, where I was invited to speak at the Harvard India Conference at the Harvard Kennedy School. I was also invited to Harvard Law School, Columbia Law School, Yale Law School, Massachusetts Institute of Technology. I met a lot of professors, scholars, lawyers, and I ended my trip with testifying before the United States Commission on International Religious Freedom Hearing on Citizenship Laws and Religious Freedom, where I was a witness. Through this trip, I realized that an advanced degree in the United States will help my cause, widen my perspective and enrich my knowledge on International Human Rights Law, and comparative constitutional law. I want to understand how citizenship is defined in different constitutional settings and the application of citizenship laws. The jus soli concept came into being in the United States through the 14th Amendment in 1868, almost 150 years ago. The law has not changed till now, and anyone born in the US is a citizen by birth. Although when our republic was founded, citizenship was granted on the basis of the principle of jus soli citizenship, this slowly got diluted into the principle of jus sanguinis. This was still further diluted in the  Citizenship (Amendment) Act, 2003 and now, both parents are required to be Indian citizens. Since my work is centred around citizenship law, and I work before the Foreigners Tribunals (FTs), and High Court, I think that an LL.M. with a focus on human rights and comparative constitutional law will benefit my cause. Apart from my litigation, I’m also involved in advocacy work on statelessness. Around 135,000 people have already been declared to be foreigners in Assam and have been rendered stateless, along with their family members. Considering that most of my cases are pro bono, this prestigious Fellowship will allow me to study as it covers all basic expenses and will additionally provide me a small stipend. The network that I will build through this Fellowship will help me with my work as well. 

DM: Absolutely, and I think we’re all eager to see how your work carries forward after your stint in the US! We were extremely happy to hear this news here at Parichay, and we’re certain you’ve been getting similarly warm reactions from everywhere. There have been a few articles and social media reactions which indicate that you’re one of the first North-East Indians to receive this Fellowship – is this true? 

AW: Actually, I’m only the second North East Indian to receive this Fellowship in international legal studies, the first was Babloo Loitongbam from Manipur who received this Fellowship in 2004, sixteen years ago! In this category of legal studies, I’m the first from Assam. In terms of the response I’ve received, I’m overwhelmed. Look, to apply for this Fellowship, you need 3 years of experience, and I’ve had 10 years of experience and I’m deeply involved with the cause of fighting citizenship cases. I must have the blessings of a lot of people that I get so much love for my work. Over the years, because of the citizenship cause becoming a movement, I have received many calls and emails, inviting me to speak at several events. That’s probably why people relate with me, and maybe even because I use my Twitter handle quite effectively in furthering my cause. We have to keep in mind that no one was speaking for the cause of citizenship, and it only became fancy to do so only when the NRC list was released, and again when the CAA protests broke out on a national level. Before that, no one spoke about it. I have been working on this since 2014, and continuously speaking about it, possibly that is why people are emotionally related to me. In Assam, I think people know me because cases of the disadvantaged are referred to me from almost every sub-division of the state, and I’ve fought all these cases. These cases have taken me to many places in Assam, and I also travel for meetings and legal awareness, and for training lawyers here. That way, I know a lot of people and a lot of people know me! I’ve been working sincerely, and working really hard, and so by the grace of God, that may be why many are able to relate with me. I’m overwhelmed by the love and wishes I’ve received over the last few days!

DM: What you said about the rise in the debate around citizenship post the NRC coming about, and more so when the CAA was passed, is a very visible development, even in academic circles in law schools. The conversation around citizenship caught on significantly at the national level only recently, and it seems to be on an exponential rise. How do you think this development is seen by those living this reality everyday?

AW: In law schools, people have started taking interest in this. I’ve spoken to professors who admit that they used to skip the citizenship provisions while teaching constitutional law, and would skip to other chapters. Most of them did this because it seemed unimportant at the time. But now, it has become a practical, and important aspect of constitutional law, even in teaching, and it is no longer something we can take for granted. Perhaps they thought it could never be questioned but finally, we know that there can be a process where everyone may have to prove their citizenship. And that is probably why the interest has increased. I wish people had taken cognizance of what is happening in Assam, which has been happening for a long time. If you go to Economic and Political Weekly you will find articles on Assam, otherwise hardly there was any writing, however, several scholars such as Anupama Roy, who are authorities in the field, have written a lot on the subject. But it has remained a relatively minor field in academics, and before the NRC or CAA debates, a citizenship issue was not considered fancy enough to discuss. 

It is regrettable that people did not give adequate attention to the citizenship crisis in Assam, possibly many lives could have been saved if they had. As you know, detention centers in Assam started in 2009, around 10 years ago, where people were being detained indefinitely. Finally, in 2018, Mr. Harsh Mander filed a petition before the Supreme Court, which reduced the period of detention to three years and it brought an end to indefinite detention. Thirty people have died in the last three years. If enough interest had been given to these issues by professors, academics, and students, possibly it would have made a huge difference to this number. But, I’m happy people are finally paying attention.

DM: To go back a little to your mention of your trip to the US earlier this year – particularly your witness testimony during the Hearings at the US Commission on International Religious Freedom. You spoke about how marginalised groups are adversely affected by the citizenship determination process, especially because many of them do not have documents. Can you tell us a little more about why marginalised groups struggle to provide documentary evidence of their citizenship?

AW: The nature of proving citizenship is such that it is entirely dependent on documentation. Because there is a prolonged problem of citizenship in Assam, the Bengali Muslim community, especially, has always been very careful about documentation. 

Firstly, the primary document is the Voter List, but since most people accused of being ‘illegal migrants’ are illiterate, there are often anomalies in the names in the Voter List. There are inconsistencies in titles especially for Muslims, the father could have the title Ali, while the son’s title is Ahmad, but this is not a concern for Muslims. But for Hindus, the title remains constant, except for women whose title changes upon marriage. So the Voter List has anomalies with age and name. 

Secondly, there is a huge problem of erosion in Assam. Every year, around 800 hectares of mainland is eroded by the Brahmaputra and Barak rivers. People become homeless and shift from one place to another, and they have to record their name to the village they move to. So, there is a different Voter List for their original home, and a different one in the village they have shifted to. For example, if the person’s name is Amjad Ali, the Tribunal may say that the Amjad Ali names on both Voter Lists are different and some other Amjad Ali has been picked up, especially if there is a difference in name and age which happens often owing to typographical or clerical errors. This causes a lot of problems for people who migrate, as the Tribunal is given more reason to doubt the veracity of the evidence. 

It is not only erosion, but because these are poor people, they do migrate for their livelihood, although this group constitutes a lesser number of people and those affected by river erosion are much more.

Thirdly, women are another vulnerable group in this context. Women get married early in Assam since the minimum age is 18 years now (earlier it was 21 years). They vote only after marriage because of being married at around the age of 18 itself, and they do so in their matrimonial home and not in their parental home. This is true for almost every woman who is accused of being an ‘illegal migrant’ in my experience, I have hardly come across any woman whose name is recorded with her parents on the Voter List. Thus, a woman’s name is usually recorded with the husband in the Voter List. This is how women lose the most important document to prove their citizenship, as the voter list is a public document which is not required to be proved by the issuing authority. So, a brother who comes to depose as a defense witness, can prove his citizenship as defense witness because of being able to prove a relationship with their father, but the sister is not able to do so, whose citizenship  is being questioned as she does not have documents to prove it. This is the most important problem here in documentation for proving citizenship. Apart from Voter List, a woman can rely on Gaon Panchayat certificates, school certificates, nikah namahs – which are all private documents. There are also jamabandi certificates which can be relied upon but those are rare since these are poor people, who do not generally part with their land, and especially not to give to their daughters or sisters. This is a big problem in every society, that women do not receive land. If they do, land documents are reliable documents , but need to be proved by the issuing authority. The bottom line is that if their names are not on the Voter List with parents, it is difficult to prove citizenship before the Tribunals. If a seasoned lawyer is approached with a woman’s case, they will immediately say it’s a bad case, or refuse to take the case. This is bad, and of course they should not do this, but they also think that this will be a difficult case so they refuse because of the absence of documentary evidence. They could rely on the deposition of relatives, under Section 50 of the Evidence Act, but in practice , this does not happen because oral evidence is hardly relied upon by the Tribunal. Even if the father himself comes to testify, the Tribunal says that oral evidence is not enough to prove citizenship. Now, with NRC, children’s documentation is also weak as a result, and I fear that they may become yet another vulnerable group in citizenship cases.

DM: So when those accused of being ‘illegal migrants’ are ‘declared foreigners’, they are taken to detention centres, which you mentioned earlier. You recently approached the Supreme Court (‘SC’) in a plea to release persons ‘declared foreigners’, under the Foreigners’ Act, 1946, from the detention centres in light of the COVID-19 pandemic. What are your thoughts on the role of the SC in releasing people stuck in detention centres throughout the COVID-19 lockdown? Was the Supreme Court’s decision and the administrative response as you and your team expected when you filed before the Court?

AW: The SC in regard to detention and citizenship matters, is not as sympathetic as it should be. We filed our petition because the Court had already taken up a suo moto case with regard to decongesting the prisons in the wake of the COVID-19 pandemic. We felt that since detention centres are located in prisons, detainees should be released on the same basis as prisoners being released to decongest prisons. So we filed this petition praying that all detainees should be released unconditionally, without the earlier conditions imposed by the Court, i.e, completion of three years in detention, and requirement to submit two sureties of INR 1 Lakh each upon release, and appearance before police station every week. Since these are very harsh conditions, we argued that being a ‘declared foreigner’ should not attract such penal consequences. Persons are purportedly detained for the purpose of deportation only, but since March 13, 2013, which is when the formal deportation procedure began, only four ‘declared foreigners’ have been deported as per the Assamese Government’s affidavit before the Supreme Court. So if they cannot be deported, why detain them? Thus we prayed that these conditions be done away with, and that everyone be released in wake of the Coronavirus Pandemic.

The Hon’ble Supreme Court was pleased to reduce the detention period from three to two years, and reduce the financial bond to be furnished to INR 5000. This is a welcome Order, and 350 people have already been released. People like Minara Begum, who was detained in 2010, could not be released earlier because of the onerous requirements of the financial bond to be furnished by sureties in the 2019 Order which reduced the detention period to three years. When the requirements were reduced this year, a lot of people came forward with INR 5000 and detainees could be released. When Minara Begum was detained in 2010, her daughter was only 15 days old, she grew up in the detention centre with her. Their release and numerous others’ release was secured because of the Hon’ble Supreme Court’s order in our petition. But, I very humbly disagree with the Order in the sense that I think it is unreasonable to even detain people for two years if there is no scope for deportation which is the stated purpose of detention. Persons released after three or two years, with the surety, still have to appear before the police station. Everyone can be asked to meet this condition of appearing before the police station. Surety can be taken to meet this requirement, and instead, the surety requiring these huge financial bonds can be dispensed with, and I am certain many will come forward to give surety as well. As I said, in the last three years, 30 people have died in the detention centres which anyway have pathetic conditions. Detainees are forced to live there without having committed any crime, which takes a huge toll and they are under huge mental trauma. I agree that it is a favourable decision and I bow down to the decision of the Hon’ble Supreme Court, but I had hoped the entire system of detention would be dispensed with. I would have been happy if each and everyone had been released. 

DM: In a recent interview, you spoke about the pressure on bureaucratic and judicial officials to manufacture foreigners where none exist. This raises a larger question of how the determination of citizenship should ideally take place. What are some of the best practices/legal principles that we should incorporate into our system, and are there jurisdictions which we can look to for guidance?

AW: Firstly, I wonder if there is even a citizenship determination process in other countries which is comparable to the way it is determined in India. I’ve researched a lot, but there is no process that can match the way it is done here. 

Secondly, the basic problem is that while all tribunals in India are set up under a legislation, Foreigners Tribunals are set up under an Executive Order. The foundation itself is wrong. In the 1964 Order too, there is a requirement for members to have judicial experience which has slowly been relaxed, and altogether dispensed with. Initially, lawyers with 10 years of experience were appointed, then in 2019 lawyers with 7 years of experience were appointed. I’ve come across several recent appointees who only enrolled as lawyers 7 year ago and many of them have not even been practicing lawyers. Many appointed to the Tribunal do not have adequate experience to deal with the most important right in the Constitution – citizenship rights. 

Citizenship is the most important constitutional right, and as it is often called, and it indeed is, the ‘right to have rights’. If you take away citizenship, you don’t have any rights. Although the Constitution of India states that Article 14 and 21 are applicable to everyone, in practicality this is not true. For eg — ‘declared foreigners’,  do not have any rights despite this constitutional guarantee. They are stripped of all possible rights to live a normal life. If you look at the composition of the Tribunals, it is easy to understand the problem, many members do not even know how to write an opinion, they are not familiar with fair trial procedures, principles of natural justice or the basic principles of the Evidence Act. Although the Hon’ble Gauhati High Court selects them, they are the appointees of the Home Department of the Government of Assam. In 2017, there were remarks in the performance appraisal reviews of these members, which said their performance was unsatisfactory only because they could not declare more people as foreigners. If members declare more people as Indian, then their performance is considered unsatisfactory. All Tribunal members are on a contractual basis of two years, and those selected in 2019 are on a contract of 1 year. Thus, maintaining a job through renewal by the Government requires that the rate of declared foreigners be high, because the Government is engaged in vendetta politics and they are hell bent to prove more people as foreigners. The report by Arunabh Saikia on Scroll where Tribunal members refer to citizenship as ‘wickets’ and how many ‘wickets’ each has taken — that’s how casually they look at it, and that’s how many members decide cases as well. 

Recently, in the Dhubri district of Assam, they replaced all the Muslim government pleaders with non-Muslim government pleaders. There should at least be some pretense of following due process, or of being fair, but the Government is brazen. There should be some representation, especially in Dhubri district where Muslims are the single-largest majority but they have all been replaced. It is clear that the government wants this process to work in a way that does not meet the standard of a fair trial. I can say this with full responsibility and conviction, that this process does not meet the fair trial standard. The investigative process makes a mockery of the guarantees in the Constitution because a fair investigation is part of the right to a fair trial. When I speak of the investigative process, I become speechless because there is no investigation to speak of, and anyone can be picked up randomly and be accused of being an ‘illegal migrant’. For example, my client Mohammad Sanaullah, who is an ex-army veteran who served the country for 30 years, who was in Manipur in a counter-insurgency operation, Hifazat, when the forged ‘confessional statement’ of  him of being an ‘illegal migrant’ was signed. Hifazat means security, and when he was securing his country, he was accused of being an illegal migrant by the Assam Border Police. I shudder at the thought. This is why I really wish that the academics, scholars, and law schools, who have taken so much interest in the citizenship issue now, had done so earlier. Injustice anywhere is a threat to justice everywhere, and because people did not speak up when injustice was happening in Assam, it is haunting us all over the country. Every person who believes in the rule of law, and the theory of justice, must speak out against the gross injustice happening in Assam. This is not what the founders of India envisaged, and our Constitution says that all are equal before the law, and that the rule of law is supreme. These kangaroo courts should not exist because they do not follow due process. As a responsible citizen, I feel very sorry that no one did enough to raise their voices. 

DM: It is of note though that while the rest of the country, and the world, did not pay attention to the issue in Assam keenly, you and other lawyers have continued this fight at the FTs there. As a young lawyer, what has been your experience working in the FTs? Within the community of lawyers, how has your experience with the Bar Association, and others litigating before the FTs panned out? Did you have a mentor to guide you in this process?

AW: With regard to upholding the Indian Constitution, and inspiring me to become a human rights lawyer, I had two mentors. Firstly, Mr. Prashant Bhushan with whom I interned in the SC in my fifth year, in January 2010. In 2014, I met Mr. Harsh Mander as well. Both of them mentored me in that sense. But my inspiration to litigate in the field of citizenship specifically is owed to the fact that I’ve been accused of being a Bangladeshi myself, by my batchmate in secondary school. While studying law, I initially wanted to appear for UPSC, but I realized I would lose my voice. I wanted to speak out about what was happening. I realized I needed to tell the stories of how people of Indian soil are accused of being illegal migrants in their own motherland. They are abused and massacred in the name of being illegal migrants. Although we elect MPs and MLAs, they don’t speak about these issues. Our leaders and representatives should speak, because they have social and physical security, unlike me. I’m faced with threats to my life and my career but I continue to speak because I cannot compromise on what I believe. That’s why I gave up my dream of writing the UPSC exam, because I want to speak the truth and tell my stories. The day I stop speaking the truth, I will not be able to live with dignity. And it’s not just about my dignity, but the right of the persecuted and marginalized and voiceless people  to live with dignity, that is what keeps me going. It is a right that predates the Constitution. It is an inherent right, the Constitution and the Hon’ble Supreme Court through various judgements only confirmed the right to live with dignity. Any person born in any country, whether Stateless or legal or illegal, possesses rights to live with dignity (The word ‘illegal migrant’ itself is wrong, but it is the language of the Citizenship Act, which is why I’m using this term.)

Several lawyers have fought these cases, but it was just a case for most of them, and not a cause. In 2014, I started fighting these cases and I realized that most of the people who approached me were rickshaw pullers or thela walas who could not pay my fees. I realized that I belong to a privileged background, so I was not after money but the core of it was that I empathize with them. Empathy, not sympathy, because I saw myself in their position, because I know I could be one of them. When I was in secondary school, a friend called me ‘Bangladeshi’ so if instead of him, it had been the Border Police, they would have referred my case to Tribunal and I would be standing in the FT defending my citizenship. I saw myself in their place and I started doing this pro bono. In 2016, someone from my nani’s (maternal grandmother) place who knew that I practiced in the Supreme Court approached me. Moinal Molla had been detained for two and a half years by then, because of an ex parte order declaring him to be a foreigner. Both of his parents were declared Indians by the same FT. His writ petition and review petition were dismissed by the High Court and they had no money to go to the Supreme Court. 

We had a small group of friends then, and I told them that this was a good opportunity to help someone and simultaneously get the word out about detention centres in Assam, and the arbitrary process of FTs by which one can be declared foreigner ex parte. In 2014, the issue was an elephant in the room in Assam which no one wanted to talk about, and outside Assam, no one knew. It was, and still is, a taboo to appear for the defense in these cases at the FTs or HC, they think they will get branded in a certain way, sadly. One of my friends told me that she will give her zakat money, and another friend also came forward. Eventually, we landed up in the SC, and we briefed Mr. Raju Ramachandran about the case. The case got remanded to the FT in Barpeta, Assam, where I appeared 11 times and fought his case fully pro bono. He was declared an Indian and released after 2 years, 11 months and 29 days of detention. This story got out when notice was issued for the SLP by the SC, and eventually when he was released, it made big news! There have been subsequent cases of Mihir Biswas, Kismat Ali, Ashraf Ali, Mohd. Azmal Haque, and Sanaullah, which I fought and tried to publicise to bring the focus the issue deserves. At least people are talking about it, even jurists like Faizan Mustafa are writing about the FTs being kangaroo courts, and rightly so. Constitutional experts and jurists are speaking about this now, and I wish it had happened sooner. The blame also does lie on the civil society in Assam, which could not tell the world what is happening, and we had to start it. 

DM: There is often this narrative around the NRC, that there is political consensus on the need for this exercise, but its implementation has alienated people. Is it true that this consensus exists and if yes, could it have been done in a way that could have been fair and independent? 

AW: There was no such consensus about NRC from all groups of people – why should everyone’s citizenship be scrutinized? But then the SC ordered that the 1951 NRC should be updated in Assam, and since it was the Hon’ble Supreme Court’s order, we took it very positively. We thought that if at all there should be scrutiny, a Court-monitored process would be better than merely an Executive process. We wanted closure – how long will one group of people accuse another group of being illegal migrants? We thought that this issue must end; every election is fought only on this issue. In 2016, BJP fought and won the election only on this migrant issue. Hence, the Bengali Hindus and the Muslims took part in the process very actively. Plenty of lawyers, civil rights activists, and organisations travelled all across Assam to create legal awareness about how to fill up the form. I was also one of the privileged people who got to travel all over Assam, particularly the minority dominated areas, and I told the people I met, in each and every meeting, that this is a Court-monitored process so they should have faith in the Supreme Court of India. I assured them it would be a free and fair NRC, but the process turned out to be very harsh. There were several rounds of scrutiny, but people thought that “This is the last time going through this process, after this, do not accuse and abuse us as foreigners, let there be closure!” 

The Supreme Court quoted Shri Prakash Jaiswal’s statement before the Parliament about ‘5 millions illegal migrants’. Although, Shri Prakash Jaiswal himself withdrew that comment, this withdrawal was not recorded and the SC recorded only his first statement. After the process, only 1.9 million people were excluded. We found that many relatives, including my own cousins, were excluded from the NRC, which is how these numbers reached 1.9 million. But, in an Economic Times report, NRC authorities say that apparently names included in the NRC were deleted later on. In June, the NRC authorities issued another order for rectifying the Order which excluded people. What can be more outrageous than this? After excluding people from citizenship in an Order, they turned around to say that there are anomalies in that Order! Citizenship is not a petty thing. After the NRC list was out, when 1.9 million were excluded, the supporters of NRC began speaking against it. 

Today, we say – notify the NRC, and confirm it. There were 3.29 million people who applied for it, and 1.9 million have been excluded, so the others should receive the national identity card. That is the requirement under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. More than one year later, nothing has happened. Within a week, excluded people were supposed to receive rejection orders so that they could appear before the FT. The Guwahati HC selected 200 people to be appointed to the FTs in 2019 as I mentioned earlier, who are taking salaries of around INR 85,000 without doing any work, through taxpayers’ money. There is no issuance of notice because the very people who advocated the NRC found that their propaganda did not match the reality because allegedly there is ‘less exclusion’ so they do not accept this NRC. Now, the Home Minister says there will be another NRC in Assam, and the BJP government in Assam also says that they will scrap the NRC to hold another round of NRC, recently they stated they want re-verification. INR 1600 Crores were spent only by the Government in this exercise, which involved 55,000 Government employees, and these costs do not even include the costs incurred by the common people travelling across the State. People went through a lot of harassment during the process, and some even committed suicide for fear of losing their citizenship. How can you ask people again to produce documents in the name of re-verification? This would be a betrayal of the faith which people reposed in the Supreme Court when the Court ordered that the government update the NRC.

Devashri Mishra is a fifth-year B.A. LL.B. (Hons.) student at West Bengal National University of Juridical Sciences, Kolkata. She is a member of the Parichay Blog Team.

Proving Documents When the Original Author Is Not Available

Bureaucratic exercises to determine citizenship are usually heavily reliant on documentation. The process to prepare the National Register of Citizens (‘NRC’) has been no different. For a person’s name to be included within the NRC, the applicant would have to submit documents such as land and tenancy records, board/university education documents, citizenship certificate, amongst others. Applicants would also be required to prove the validity and veracity of the documents they submit. This has to be done by examining the author or the issuing authority of the document, who would have to testify as to the veracity of the documents. However, often, the author of the document is not available for examination, for a variety of reasons. Problems could also arise in a situation where the documents are quite dated. Issues such as these could lead to dire consequences, such as the particular documents being rendered inadmissible as evidence, thereby jeopardizing the applicant’s claim of citizenship. In an analysis of 787 orders and judgments of the Gauhati High Court, it was found that one in two people were declared to be foreigners because the issuing authority/author of the document failed to appear before the Foreigners’ Tribunal and testify that the documents were genuine. Considering these severe consequences, it becomes important to analyse the legal provisions that can be used to prove a document when its author is not available to testify to its genuineness. This research note analyses the legal provisions which might help in proving documents whose author isn’t present. It also looks at the presumption for documents which are over 30 years old and objections regarding the mode and manner of proof of documents.

A. Proof of execution/genuineness of a document

Section 67 of the Evidence Act read with Section 45 and 47 talk about the proof of execution or genuineness of a document. This requires the identification of the handwriting/signature of the author of the document. This can be done by bringing the author of the document or any other person who witnessed the author signing/writing out the document, or who is generally familiar with the author’s signature/writing.

This can also be proved by circumstantial evidence, including the form in which the document was prepared and comparing that to other documents prepared by the same author or as a series in a regular correspondence or other internal clues about the genuineness of the document (e.g.: symbols/marks).

The original author of the document is not required to be present in court to prove a document and its contents. The proof of the truth of the contents of a document can be proved by any person who can vouchsafe for the truthfulness of those facts.

The following cases deal with the proof of documents:

  1. Mobarik Ali Ahmed v. State of Bombay, 1958 SCR 328 : AIR 1957 SC 857 : 1957 Cri LJ 1346 [Supreme Court – 4 judge bench]

In this case, the appellant relied upon certain letters, most of which were purported to bear his signature. A few of those signatures were admitted to by the appellant. There were also a few letters without signatures. Both the complainant and Jasawalla (a commission agent who was in correspondence with the appellant) speak to the signatures on the other letters. The objection of the learned counsel for the appellant was that neither of them has actually seen the appellant write any of the letters nor are they shown to have such an intimate acquaintance with his correspondence so as to enable them to speak to the genuineness of these signatures. The learned trial judge, as well as the learned judges of the High Court has found that there were sufficient number of admitted or proved letters which might well enable Jasawalla and the complainant to identify the signatures of the appellant in the disputed letters. They also substantially laid stress on the contents of the various letters, in the context of the other letters and telegrams to which they purport to be replies, and which form the chain of correspondence, as indicating the genuineness of the disputed letters. The learned counsel objected to this approach on a question of proof. However, the Court did not agree to this objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document.

This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position, both, with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject matter of the chain of correspondence, to speak to its authorship. In an appropriate case the court may also be in a position to judge whether the document constituted a genuine link in the chain of correspondence and thereby determine its authorship.  In this case, the Court refused to hold that the approach adopted by the lower courts in arriving at the conclusion that the letters were genuine, was open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived at. However, the Court did not look into this matter.

  1. Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80 [Supreme Court – 2 judge bench]

There existed a dispute between the parties, during the course of which letters and cables were sent. It was urged by the respondents that even if the Court proceeds on the assumption that the letter and the cable were received, it was not open to this Court to look into the contents of the letter and the cable. This was because the contents were not proved, as the Managing Director of the appellant Company who was supposed to have signed the letter and the cable had neither entered the witness-box nor filed his affidavit proving the contents thereof.

Reliance was placed on Judah v. Isolyne Shrojibasini Bose [AIR 1945 PC 174: 1945 MWN 634: 26 PLT 279]. In that case, a letter and two telegrams were tendered in evidence and it was observed that the contents of the letter and the telegram were not the evidence of the facts stated therein. The question in that case was whether the testatrix was so seriously ill as would result in impairment of her testamentary capacity. To substantiate the degree of illness, a letter and two telegrams written by a nurse were tendered in evidence. The question was whether in the absence of any independent evidence about the testamentary capacity of the testatrix, the contents of the letter could be utilised to prove want of testamentary capacity.  The Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence.

Mere proof of the handwriting of a document would not be tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue, mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.

But in this case, Bhikhubhai Gourishankar Joshi, who filed an affidavit on behalf of the appellant, had referred to the averments in the letter and the cable. He was a principal officer and constituted an attorney of the appellant company. The Court established the truth of the averments made in the letter on the basis of the fact that even after the receipt of the letter and the cable were admitted or proved, and the fact that even after the dispute arose, but before the suit was filed, the respondent did not make any overt or covert references to the arbitration agreement, in the correspondence between the parties. The truth of the averments was also established on the basis of the failure of the respondent to reply to the letter and the cable controverting to the averments made therein, in the correspondence that ensued. The Court held that the averments contained in the letter and the cable were satisfactorily proved.

  1. Rami Bai v. Life Insurance Corporation of India, AIR1981MP69, 1981MPLJ192 [Madhya Pradesh High Court – Division Bench]

In this case, it was held that Section 67 of the Indian Evidence Act does not lay down any particular mode of proof for proving that a particular writing or signature is in the hand of a particular person. Thus, the signatures may be proved in any one or more of following modes:

  1. By calling the person who signed or wrote a document;
  2. By calling a person in whose presence the documents are signed or written;
  3. By calling handwriting expert;
  4. By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written;
  5. By comparing in court, the disputed signature or handwriting with some admitted signatures or writing;
  6. By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it;
  7. By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person. A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e. g. by the scribe who signed on behalf of the executant;
  8. By other circumstantial evidence.
  1. Dhar and Co v. Sib Narayan Singh, 59 Ind. Cas.188; MANU/WB/0195/1920 [Calcutta High Court – Division Bench]

In this case, it was held that where an executant denies that he wrote a document, the ordinary mode of proving the execution is by calling someone who saw such person write, or who knows his handwriting. This is only one of the modes of proving the document.  In this particular case, there were several papers on record which bore the admitted signatures of the respondent  and it was held that the Court could have compared the signature on the letter with those signatures.

B. Presumption for documents over 30 years old

Section 90 of the Indian Evidence Act allows a court to raise a presumption as to the genuineness of a document that is over 30 years old and is produced from the proper custody of the person who would normally be in possession of such a document in the usual course of things. In such a case, the author of the document does not need to come to court and identity the document or his handwriting, etc.

The following are some cases dealing with Section 90 of the Indian Evidence Act:

  1. State of A.P. v. Star Bone Mill and Fertiliser Company, (2013) 9 SCC 319 : (2013) 4 SCC (Civ) 444 : 2013 SCC OnLine SC 176 at page 325 [Supreme Court – 2 judge bench]

Section 90 of the Indian Evidence Act is based on the legal maxims: nemo dat qui non habet (no one gives what he has not got); and nemo plus juris tribuit  quam ipse  habet (no one can bestow or grant a greater right, or a better title than he has himself). This section does away with the strict rules, as regards the requirement of proof, which are enforced in the case of private documents, by giving rise to a presumption of genuineness, in respect of certain documents that have reached a certain age. The period is to be reckoned backward from the date of the offering of the document, and not any subsequent date i.e. the date of decision of suit or appeal. Thus, the said section deals with the admissibility of ancient documents, dispensing with proof as would be required, in the usual course of events in a usual manner.

  1. Desh Raj v. Bodh Raj, (2008) 2 SCC 186 : (2008) 1 SCC (Civ) 498 at page 197 [Supreme Court – 2 judge bench]

This case involved a dispute between Desh Raj (appellant) and Bodhi Raj (respondent) as to the respondent’s caste, and whether he was entitled to contest elections from a seat reserved for Scheduled Castes. In this case, the High Court rejected two exhibits, Exts. PW 3-A and PW 3-B, on the ground that the date of Ext. PW 3-A was not clear and could be read as either 22-4-1966 or 23-4-1968. But neither of those dates correlated to Ext. PW 3-B, as that showed that the admission must have been made between 11-9-1967 and 4-4-1968. It is evident from Ext. PW 2-A that Bodh Raj left the primary school on 31-3-1967. The date on which the application for admission was registered was seen as “22.4.196­  ”. The Court had a doubt regarding the last figure in the “year” and had to determine whether it was ‘6’ or ‘7’ or ‘8’ as that would make the year 1966, or 1967, or 1968. Merely because there was difficulty in reading one figure in the date could not be a ground to refuse to accept Ext. PW 3-A. The said application submitted by

Milkhi Ram, containing his thumb mark, being a document more than 30 years old attracted the presumption under Section 90 of the Evidence Act. As Ext. PW 3-A gives the caste as “Tarkhan”, it has to be treated as clinching evidence. Ext. PW 3-B which was also produced from proper custody in pursuance of summons issued from the Court showed that Bodh Raj, son of Milkhi Ram, Tarkhan caste, belonging to Mohtli Village studied up to 8th standard. Here, the Court noticed that the evidence of the witnesses of both, the appellant and the respondent was that there is only one Bodh Raj, son of Milkhi Ram in Mohtli Village. Therefore, the Court held that there was no justification to hold that there were some irreconcilable differences between Ext. PW 3-A and Ext. PW 3-B and rejected both the documents.

  1. Laisangbam Bimol Singh v. Konsam Babulen Singh, 1999 SCC OnLine Gau 159: (2000) 3 Gau LR 389 : (2000) 1 Gau LR 457 at page 394 [Gauhati High Court – Division Bench]

As a general rule if a document is produced before a court its execution must be proved by a witness and if the document is required by law to be attested, its attestation must also be proved by some witness. Only when this formality has been observed can the document form part of the record and be looked into. If the documents produced in court are not proved, they cannot be relied upon. But there may be circumstances when the documents have been produced before the court long after they have been executed. The time elapsed between the execution and the production of document in the court may be so long that all the persons in whose presence the document was executed might have died. If the method of proof mentioned above is strictly to be followed in such cases, it could cause great hardship and a number of genuine documents would remain unproven. Section 90 of the Indian Evidence Act is a provision for this kind of a situation. This section is founded on necessity and convenience. Section 90 gives the court the power to draw a presumption about a document which is 30 years old. The conditions for presumption are as follows:

  1. The document must have been in existence for 30 years or more.
  2. It must be produced in court from proper custody.
  3. The document must be in appearance free from suspicion.
  4. It must purport to be in the handwriting of a person and should not be anonymous.

The period of 30 years is to be reckoned, not from the date upon which the deed is filed in court but on the date on which it has been tendered in evidence, when its genuineness or otherwise becomes the subject of proof. Generally, there is no presumption about the recitals in such a document. But in some circumstances a recital of consideration, legal necessity etc. may be presumed under Section 90. The presumption under Section 90 is rebuttable, but in such a case, the burden will fall on the defendant.

C. No objection as to mode and manner of proof taken at the appropriate stage

Irregularities or errors in the mode or manner of proof of documents must be taken at the stage of tendering the document into evidence and not at a later stage.

In the absence of the objection at the stage of tendering the document into evidence, the document cannot be assailed at a later stage on the ground that the mode or manner of proof was incorrect.

The following cases deal with objections as to the mode and manner of proof:

  1. RVE Venkatachala Gounder v. Arulmigu Visweswaraswami (2003) 8 SCC 752

In this case it was held that, if there is any objection to the evidence, it should be taken before the evidence is tendered.  Once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by this failure, the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence. There are two reasons for this.  Firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there. Secondly, in the event of a finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking the indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties.

  1. Gopal Das v. Sri Thakurji, AIR 1943 PC 83

This case pertained to a scenario where the objection to be taken was not that the document was   in itself inadmissible but that the mode of proof put forward was irregular or insufficient. The Court held that in such a scenario, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. It held that a party cannot lie by until the case comes before a court of appeal and then complain for the first time about the mode of proof.

This note has been edited for clarity by Sreedevi Nair.